Florida Crime Victims’ Rights

Full Transcript: Free Advice Interview with Personal Injury Attorney Jason Turchin
The following is a transcript of an interview with Florida personal injury attorney, Jason Turchin, conducted on February 9, 2007. Mr. Turchin is currently an associate with Bernstein & Maryanoff, a law firm with over 20 years experience handling injury and wrongful death cases throughout the state of Florida. Mr. Turchin specializes in crime victims’ rights, car accident cases, personal injury cases, and wrongful death cases, settling over 1,000 cases involving big insurance companies. In this interview, he discusses crime victims’ rights in the state Florida.

Free Advice: What is crime victims’ law and what makes it different from other areas of law?

Jason Turchin: Florida crime victims’ law covers many kinds of cases. In any crime, there are essentially two different cases: the civil case and the criminal case. When people think of crime victims’ law, they think of the criminal case in which a state attorney tries to prosecute and punish the perpetrator for whatever they did to the victims or their families. Crime victims have some rights in crime victim cases. There’s the Florida constitutional right, which establishes a crime victims’ bill of rights. It provides for certain rights of the accused and the victims. The state attorney has to inform the victims of certain things and the accused has to be informed of certain things as well.

There’s also [Chapter 960 of the] Florida Statutes, Section 960.001, which sets out guidelines for the treatment of victims in the criminal justice and the juvenile justice system. That statute typically applies in the criminal case. It gives rights for the victims to be informed of certain proceedings, to give testimony at certain parts of the case, to give a victim impact statement, to be advised if the criminal is going to be released from jail. It sets out notice requirements for the victims or the families.

Compensation for victims in the criminal case typically falls under what we call restitution, in which the state attorney tries to get the defendant to pay money for whatever kind of out-of-pocket losses were incurred by the victims or the families. It could be property damage, for example in a DUI case where the drunk driver hit somebody’s car, or lost wages if the victim lost certain wages or paid any deductibles or medical expenses out-of-pocket as a result of the crime. Those are really the basic rights in the criminal case. The difference between criminal and civil cases where victims are concerned is that in criminal cases, the victim really is not the client. It’s the state attorney who represents the state of Florida. That’s why we have a case that’s the State of Florida vs. Defendant So and So, and the victim is merely a witness to the crime that was committed against the state. That’s why the state attorney has a lot of discretion over what they want to do with the case, and they don’t necessarily have to get the victim’s consent before they make a plea deal or go to trial. Although they’re supposed to notify the victim of the trial, sometimes they don’t do that. In that case, there’s really not much the victim can do because, again, the victim’s just a witness that the state can call.

In a civil case, the victim is actually the person bringing the case. They have a lot more power that way, and they control a lot more of the outcome of the case. The victim has more rights in a civil case, and can seek compensation, justice, and accountability for what happened.

Free Advice: So, a classic case would be the O.J. Simpson case where he got off on the criminal case but was then sued in the civil case?

Jason Turchin: Right. In the O.J. Simpson case, the family was allowed to bring the civil case because there are different burdens of proof on different evidentiary standards. In the criminal case, the state attorney has to prove beyond a reasonable doubtthat the defendant committed whatever crime they’re being charged of against the state. That’s a pretty high burden to overcome. It basically means coming to a 97-99% certainty that this person, this defendant, who is being charged with a crime, committed this crime in the way that he is alleged to have committed it.

In Florida civil cases, we have a standard that we call the greater weight of the evidence. Picture the scales of justice: if the scale tips just the slightest bit one way versus the other, whoever it tips in favor of wins. There is a much easier standard to overcome in the civil case versus the criminal case. We see that more and more often in sex crime cases, because in the criminal case there is a very low conviction rate for rape victims. Many times the accused parties use a lot of defenses: they can argue consent; they can argue that it wasn’t them or that the person said yes or that the person’s memory isn’t clear. There are many ways to poke holes in the sex crime cases, and juries are a lot more reluctant to convict somebody accused of rape because there is a potential that there was some uncertainty as to whether she said yes or no or when she said it. Was it before or after they engaged in sex? Because of that, it’s very hard for a jury to say with 97-99% certainly that this person committed the crime of rape.

In the civil case, we have a 51-49% balance. Who do we believe more? It’s a he-said/she-said. If the female has more credibility than the male, the jury can award damages against the person who did this. There’s a much different burden of proof and that’s one of the reasons why a not-guilty finding in a criminal case doesn’t necessarily rule out a civil case.

Free Advice: What are some of the ways in which crime victims can be compensated in Florida in civil cases?

Jason Turchin: There are three different ways a crime victim can be compensated in Florida. There’s restitution, in which the judge in a criminal case orders the defendant to pay back certain things to the victim. There’s the Florida Crime Victims’ Compensation Fund, which is put out by the Florida Attorney General’s Office and helps to compensate victims. Victims can apply for compensation and the Fund helps to compensate them for certain actual losses. Finally, there’s the civil case, in which the victim can file a claim for different types of damages.

Victims can pursue economic damages or actual damages which we can calculate. These might include lost wages, past medical bills, even future medical expenses if we can get a doctor’s opinion as to what those might be. They would include co-payments from insurance and anything that we can actually calculate. Then there are non-economic damages, which include pain and suffering, mental anguish, loss of consortium, loss of relationship between different people involved in the case. Those are things that we can’t really calculate, but they do have significant value to a jury and to the people who are involved in a case.

Victims can also pursue punitive damages in which a jury seeks to punish the person or the entity that is responsible for the crime to make sure that they don’t ever do it again and to send a message to society that such behavior is not going to be tolerated.

Free Advice: In a civil case, who can the plaintiff sue? Is it just the person who committed the crime or, for example, if someone was attacked in a hotel, could they go ahead and sue the hotel for not providing security?

Jason Turchin: Yes. In the criminal case, the state attorney focuses on the criminal. They’re trying to punish the criminal for what happened. That’s really the entire focus of that case. In the civil case, the focus is on the crime itself. What we look to do is to investigate the crime. Could it have been prevented? If it could have been prevented, who could have prevented it? Is there anything that could have been done differently that would have changed the circumstances, minimized the damages or completely prevented the incident from happening?

Let’s use the example of a child molestation case in which a child goes to daycare and is molested by an employee of the daycare center. We want to investigate the daycare center and investigate the person who did this. We’d not only go after the supposed molester; we’d pursue the daycare center to see if they could have prevented this. What, if anything, could they have done differently to avoid this? What duties of care do they owe to our client or to the person who was molested? Did they follow that duty? Did they breach that duty? Sometimes there’s nothing they could have done to prevent it. But, for example, suppose there’s a daycare center that didn’t conduct a proper investigation of the molester prior to the molestation. This molester had prior allegations of molestation and the daycare center didn’t properly investigate it or they retained the person. We look to see if there’s a case of negligence against the daycare center, too. Negligence gives us a lot of different avenues to look at. Negligent hiring. Did they fail to conduct a proper background check? Negligent retention in which somebody complained about the person before and the center assumed the risk and hoped that the person would never do it again. If the person goes ahead and molests somebody, well, they took the chance. They already had notice that this person was a bad person or bad character and they still left them around little girls or boys.

There’s negligent supervision in cases in which parents put minors in daycare, presume that the daycare’s going to take care of them, and for some reason, the daycare doesn’t. They don’t supervise the children properly. They don’t supervise their staff properly. These are just a few examples of ways in which we can pursue or investigate other entities or responsible parties. Again, we’re looking at the crime itself to see who could have prevented this. We’re looking for accountability.

Free Advice: What would be some other examples besides the daycare example that involve crime victims cases?

Jason Turchin: A shooting case at a gas station would be a good example. Suppose somebody’s at a gas station just pumping gas and somebody comes up to rob them or shoots them on the property. We then would look to see what the gas station could have done differently. You look at crime grids of the area. You look to see if it is a high crime area. What security measures did the gas station put into place and did they follow those security measures? Did they put cameras in and were the cameras operating? Did they have any signs posted notifying the people there that it’s a dangerous area? Did they have any security? If they had security, how often did they have security there? Is it enough that they have a security guard there once a week for five hours a day, or do they have somebody there 24 hours a day watching the place? What measures did they take to try to protect the people that are coming there or are they just really trying to get money from people every day without really protecting them?

What we’re looking for is to see if there have been any prior violent crimes on the property or in the area, some situation that puts the property owner on notice that there’s a dangerous condition or dangerous area on their property. They have a duty of care – they owe it to their customers. If we look at a crime grid and we find ten violent crimes on the property or around the property and that the property itself had been subject to several armed robberies or violent crimes prior to the shooting, the owners may be on the hook for some negligence because maybe if they paid a security guard $100.00 a week or a couple hundred dollars a week, they could have prevented the death.

Another example might be drunk driving cases. Those are crime victim cases. We have the criminal component in which the state attorney tries to prosecute a drunk driver for a DUI death, DUI manslaughter, or a felony multiple DUI charge. We also have a civil component. In a civil DUI case, there are really two cases: we have the regular auto accident case in which we’re trying to get compensation for the client due to injuries or property damages. There’s also a criminal component because we have to prove the DUI aspect of it. We have a pretty good law here for drunk driving victims. Case law says that the victim of a drunk driving accident can pursue not only compensatory damages, like economic and non-economic damages, but also pursue punitive damages against the drunk driver. And, that – what the punitive damages attempt to do is to punish this person for what happened and to send a message to society that this type of grossly reckless behavior will not be tolerated and will earn severe penalties.

Free Advice: Is the place that served the alcohol to the drunk driver also able to be included in the civil lawsuit?

Jason Turchin: Yes. In Florida we have a dram shop law. It’s a very specific law which allows a victim of some kind of alcohol negligence to go after either a bar, hotel or somebody with a liquor license under certain provisions of the statute. It basically provides that if a bar or establishment knowingly serves alcohol to somebody under legal drinking age or to somebody who is habitually addicted to alcohol, they may be responsible for any injury or damage caused by or resulting from the intoxication of the minor or the habitually addicted person.

Let’s say there’s a client who is 19 years old and goes to a bar and goes with a couple of friends, some under 21, some over 21, and the bar has nobody at the door and everybody walks in. The minor’s not driving that night. He’s just a passenger in the vehicle. And the bar serves all of them alcohol, doesn’t ask for any ID, just serves everybody alcohol. Let’s say that one of the people in the party who has an alcohol level over the legal limit decides he’s going to be the driver and drive everybody home and they all start driving home. The minor’s in the backseat just passed out, minding his own business, and the drunk driver drives 100 miles an hour, flips the truck over, everybody’s ejected, and the minor who was served alcohol dies. We can look at the bar and actually hold the bar liable in the state of Florida for serving that minor alcohol because they’re responsible under the statute for anything that happens to that minor as a result of the intoxication. In this case we have a minor who, because he was drunk, wasn’t really of sound mind to make coherent decisions and decided to get into a car with a drunk driver. Because of that decision the drunk driver then crashes the car and the minor dies. Well, his family can make a claim against the bar for his death resulting, in part, from the intoxication.

A lot of bars actually purchase liquor liability insurance to protect them and at least have some kind of insurance coverage to protect them from things like this.

Free Advice: What is unique about trying a crime victim’s case as opposed to a general personal injury case?

Jason Turchin: There are two different cases to try. And sometimes there are three different parts to a case. We have the regular personal injury type of case where we try to prove what our client’s damages are and that the other person was responsible for it, but we also have to prove the crime itself. Not only that our client is the victim of an injury, but our client is also the victim of a crime. Often, if we have a punitive damage part of the case, we have to prove the crime in order to get to the punitive damage charge. Sometimes in a case such as a DUI case we have what we call bifurcated trial, which tries the first part of the case on liability. Is the person that we’re going after, the drunk driver, liable for our client’s injuries or damages? There’s a damage portion where the jury has to calculate what our client’s damages are; what their economic damages are, their losses, calculable losses. We also have non-economic damages; what their pain and suffering is, what kind of mental anguish they’ve endured as a result of the accident. We also have liability for punitive damages. How egregious were the drunk driver’s actions? Were they completely reckless?

Then, if they find that they’re responsible, we then have a second trial, generally on the punitive damages where the jury can then award a certain amount, whatever amount the punitive damages they want to. And, there are certain caps in Florida as to how much they can award in punitive damages. The purpose isn’t to bankrupt the defendant, but rather to really send a message that the behavior isn’t going to be tolerated.

We don’t always have a bifurcated trial. It’s really if one of the parties asks for it. However, there usually is a punitive damage component in a crime victims’ case.

Free Advice: You’ve mentioned a Florida Victim’s Compensation Fund. What is that?

Jason Turchin: The Florida Attorney General has set up a fund to give some kind of assistance to victims of crime who either don’t have the benefit of pursuing a civil case where maybe there’s just nobody else who could have prevented it aside from the perpetrator or, unfortunately like most victims in Florida, just don’t know that they have the right to pursue a civil case. The compensation fund is set up to help offset some of the costs that a lot of crime victims endure as a result of the crime. Usually it’s aside from restitution. The forms are available through the Attorney General’s office and victims can even download the application from the Attorney General’s website. There are certain qualifications that the victim has to have in order to get the benefits from the program. If they qualify for it, the Attorney General’s office sends them a check or sends the check to whomever they may owe money to as a result of the crime. It helps cover things like wage loss, property damage, funeral expenses, medical treatment, mental health treatment, etc. It usually provides assistance right away. If the victim decides that they’re going to pursue the victim’s compensation fund, they can still pursue a civil claim and they can still pursue restitution.

You can’t collect for the same thing twice. But if the victim pursues a civil compensation claim and they decide, either before or after doing so, that they’re going to pursue a civil case, the Office of the Attorney General will simply file a lien on the case and tell the attorney for the crime victim in the civil case, “Hey, look. Whenever you get your case settled, we’ve already paid some of the medical bills or some of the lost wages and we are entitled to get paid back before the victim gets any additional money.” It’s essentially health insurance for crime victims.

Free Advice: Are there attorneys that specialize in crime victims’ law?

Jason Turchin: There are a few attorneys who focus their practice on crime victims’ law. The state of Florida doesn’t allow attorneys to actually say that they specialize or are experts in this field. Unfortunately, it’s not recognized as a specialty practice. Many attorneys don’t handle crime victims’ cases like these because they’re very costly and the attorneys either don’t have the experience in the area or don’t want to take the risk. In a lot of these cases, attorneys don’t really know if there is a case for sometimes six months down the road since they really have to investigate the crime and determine whether or not it could have been prevented.

Some attorneys who focus a lot of their practice on helping crime victims though and the risks that go along with it, the crimes involved, the criminal components of the case, the compensation fund, and the civil case, and can really give good advice to their clients. I think experience is one of the biggest factors in this field.

Free Advice: How are crime victim attorneys compensated?

Jason Turchin: Generally in a civil case they work on a contingency fee. Because there’s an injury component, the attorneys who do this usually use the Florida bar approved contingency fee agreement. It’s approved by the Florida bar and provides certain limitations that attorneys can charge in these types of cases. It’s generally 1/3 up to $1 million dollars and then 30% after or between $1 million and $2 million and 20% after that if the case is resolved without filing a lawsuit. It’s a little bit higher if a lawsuit has to be filed. Most attorneys who handle crime victims’ cases do not charge any fees or costs if they never recover any money for the crime victim or their family. So, even if they investigate the case for six months and spend $100,000.00 in their investigation and 200 hours of their time, if they find after that time that there’s just no case to go after or no civil case to pursue, then they will waive all their fees and costs and never go after the client or the victims for any money to pay them back.

They essentially assume the risk of taking on these cases.

Free Advice: After a crime victims’ attorney accepts the case, what typically happens next for the victim?

Jason Turchin:That depends on what the criminal case is and the status of the treatment. If the crime just happened say a week ago and the victim contacts a crime victims’ rights attorney and are also charging the criminal with the crime, or the state is pursuing the criminal charges, there are options. The civil case can be staid until the criminal case is over; sometimes the statute of limitations in which a victim has to file a lawsuit is extended. As far as a civil case goes, if the person was injured, in the beginning of the case hopefully they’re getting the medical treatment that they need. If they’re not, a lot of times the crime victims’ rights attorney can refer them to counseling groups, doctors, somebody who can help them at least get evaluated as far as what kind of treatment they need or what their status is at that time.

While that’s going on and while the person’s getting the treatment that they need, the crime victims’ attorney is investigating the case, sending out public records requests, or really gathering information, interviewing witnesses, getting 911 tapes if there are any, and really trying to build a case to find out who is responsible and why this crime occurred. There are a lot of things that are going on at one time and it all sort of works together in the end. Once the person’s done with treatment, once the investigation’s complete, and once the criminal case is resolved, everything kind of comes back. And then, it’s really time to pursue the civil case and find out who’s responsible and pursue the case again.